Congress’ Latest Move to Extend Copyright Protection Is Misguided

Almost exactly 20 years ago, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing copyrights by 20 years. The Act was the 11th extension in the prior 40 years, timed perfectly to assure that certain famous works, including Mickey Mouse, would not pass into the public domain.

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Lawrence Lessig (@lessig) is the Roy L. Furman professor of law and leadership at Harvard University and founder of Equal Citizens. He was lead counsel in Eldred v. Ashcroft (2002).

Immediately after the law came into force, a digital publisher of public domain works, Eric Eldred, filed a lawsuit challenging the act. The Constitution gives Congress the power to secure copyrights “for limited times,” for the express purpose of “promot[ing] Progress.” Extending the copyright of an existing work, Eldred argued, could not promote anything — the work already exists. And repeated extensions of existing terms cannot be what the framers meant by “limited times.”

The Supreme Court agreed to hear the challenge. I was lead counsel for the plaintiff. And in addition to our brief, a scad of creators who build upon the public domain, along with librarians, archivists, and economists, filed briefs in support of Eldred; Nobel Prize winner Milton Friedman agreed to sign the economists’ brief only if the words “no brainer” were included.

Yet the court rejected our challenge to the law. Justice Ruth Bader Ginsburg was not convinced that Congress was addicted to term extensions. The most recent extension, the Court remarked, simply harmonized the term internationally. After the 1998 extension, there was no reason, the Court believed, to think that Congress would need to extend terms anymore. After all, with a term of 95 years for work created before 1976, and life of the author plus 70 years for work beginning in 1976, how much more time could possibly be needed?

Twenty years later, the fight for term extension has begun anew. Buried in an otherwise harmless act, passed by the House and now being considered in the Senate, this new bill purports to create a new digital performance right—basically the right to control copies of recordings on any digital platform (ever hear of the internet?)—for musical recordings made before 1972. These recordings would now have a new right, protected until 2067, which, for some, means a total term of protection of 144 years. The beneficiaries of this monopoly need do nothing to get the benefit of this gift. They don’t have to make the work available. Nor do they have to register their claims in advance.

That this statute has nothing to do with the constitutional purpose of “promot[ing] Progress” is clear from its very title. The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it’s not just a gift through cash; it’s a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.

Yet there is no registry of these owners anywhere. And while massive digital suppliers, such as Apple Music and Spotify, could probably afford to carry the burden, no public or non-profit website could even begin to bear the cost of assuring they were not committing a felony. The act doesn’t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere. The act is simply a gift, paid for by further weakening the ability of archivists to keep our culture accessible. That’s why more than 40 professors of intellectual property of all political stripes signed a letter this week asking Congress to reject the CLASSICS Act.

When a creative work is a century old, Congress should let it pass into the public domain. But at the very least, if Congress is so eager to give gifts to famous creators, it should require that the beneficiary at least record their claim in advance, in a public and searchable archive, so it is simple to know which rights must be cleared and how.

Either way, it is finally clear that the Supreme Court’s prediction that the copyright owners would be satisfied with the copyright protection provided by the Sonny Bono Act turns out not to be true. If this bill passes, we can expect other copyright owners to complain about the “unfairness” in the gift given to the creators of legacy recordings. And in the clamber to harmonize with this 144-year term, a swamp of extensions is certainly on the way.

No doubt, the beneficiaries of these gifts will be grateful to Congress, and show their gratitude in the campaign-finance-ways of Washington. Equally without doubt, this is not what a system meant to “promote the Progress of Science” was ever intended to be.

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